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‑‑‑ Art. 203‑H‑Object and scope‑Purpose and scope of Art. 203‑H merely permits continuation of legal proceedings commenced before or after institution of petition under Art. 203‑D, and decision thereof until such law was, held, to be repugnant to injunctions of Islam.

(b) Constitution of Pakistan (1973)‑

‑‑ Chap. III‑A, Arts. 203‑A, 203‑D. 203‑F & 203‑H‑Repugnancy to Injunctions of Islam ‑ Declaration by Shariat Court or Supreme Court (Shariat Appellate Bench)‑Effect.

Declaration by the Shariat Court or for that matter by the Shariat Appellate Bench of the Supreme Court, that in contemplation of Article 203‑D a particular law is repugnant to injunctions of Islam as laid down in Holy Qur'an and Sunnah does not repeal the law, for the repeal is not a judicial function but purely legislative. Secondly, Article 203‑D and 203‑F are part and parcel of Chapter 3‑A of the Constitution. The effect of Article 203‑A thus, is that the provisions of Chapter 3‑A override Article 264 and it, therefore, cannot be applied to a case, hit by the point decided by the Shariat Court, under Article 203‑D. Even otherwise the intention of Article 203‑H appears to be to allow the continuation of the pending proceedings, to be dealt with according to the law, then in force, until the law in question is pronounced upon by the Shariat Court; as repugnant to Injunctions of Islam. According to their context, the words "decide in accordance with law for the time being in force", figuring in Article 203‑H cannot be construed to permit enforcement of the law, aftar the decision of the Sharit Court, declaring the same as repugnant to Islam. had become affective under sub‑clause (b) of clause (3) of Article 203‑D. Article 203‑G ordains that a decision rendered under Article 203‑D is binding on the High Court and on all the Courts subordinate to the High Court.

(c) Constitution of Pakistan (1973)‑---

‑‑Art. 2‑A‑ Objective Resolution as substantive part of Constitu tion‑‑Effect‑Objective Resolution, not only provides a guideline for expounding the Constitution and true understanding thereof but occupies a pivotal position and has become a substantive source of power‑State is obliged to carry forward establishment of Islamic Society and exercise its authority to enable Muslims to order their lives, in accordance with injunctions of Islam, as set forth in the Holy Qur'an and Sunnah‑Enforcement of those laws after having been adjudged to be repugnant to injunction of Islam, could have the effect of thwarting development of a socio judicial system having its ultimate basis in the will of God and defeat the principles enshrined in the Objectives Resolution.

(d) Constitution of Pakistan (1973 ‑

‑‑Art. 203‑D ‑ Object and scope of Arts. 203‑D(2) & 203‑D(3) Obligation of President/Governor to bring laws in conformity with injunctions of Islam after same having been declared to be repugnant to Islam by Shariat Court/Supreme Court Shariat Appellate Bench and effect of its non‑compliance ‑ Words "if possible" used in Government of N.‑ W. F. P. v. Malik Said Kamal Shah P L D 1986 S C 360‑Connotation of.‑[Words and phrases].

Under Article 203‑D (2) of Constitution of Pakistan (1973) in its decision, the Court has to specify the day on which it shall take affect and under sub‑Article (3) the President or the Governor, as the case may be, to whom the relevant law relates, has to take steps to bring it in conformity with the Injunctions of Islam. Such steps are to be taken and the law amended before the specified day, failing which, it shall cease to have effect on the date the Court's decision becomes effective. A superficial examination of words "if possible" perhaps may convey the impression that the date on which the decision shall be effectuated has not been firmly specified and in the matter of amendment of the law, a latitude has been extended to the Government. But the expression "if possible" needs to be construed, in the light of the constitutional obligation, requiring the President, or for that matter the Government concerned to amend the law.

(e) Punjab Pre‑emption Act (I of 1913)‑‑

‑‑‑ S. 15 ‑ Land Reforms Regulation, 1972 (M. L. R. 1 I5), para. 26(3)(d)‑Constitution of Pakistan (1973), Art. 203‑F‑Repugnancy to Injunctions of Islam ‑ Declaration by Supreme Court (Shariat Appellate Bench) with direction to Authority to amend and bring the law in accordance with injunctions of Islam before specified date‑Failure of Authority to bring repugnant law as per direction of Supreme Court‑Effect‑Where the Authority failed to bring law in conformity to injunctions of Islam as per directions of Supreme Court, Supreme Court's decision, held, would become effective as from specified date‑Failure of Government to amend para. 26(3)(d) of Land Reforms Regulation, 1972 and bring it in conformity to Injunctions of Islam till specified date viz. 31‑7‑1986 would render pre‑emption right of tenant as repugnant to injunctions of Islam and ineffective from 31‑7‑1986.

f ) Constitution of Pakistan (1973)‑

‑‑Arts. 203‑D(3)(b) & 199‑Land Reforms Regulation, 1972 (M.L.R. 115), para. 26(3)(d)‑Constitutional jurisdiction, exercise of‑Where pre‑emption suit had already been decided by forums envisaged by law, under which right of pre‑emption was claimed, constitutional jurisdiction, held, could not be invoked‑Constitutional jurisdiction was not analogous to appeal which was continuation of same proceedings and a step in the suit ‑‑‑ Enforcement of right of pre‑emption on basis tenancy having ceased to exist by decision of Supreme Court (P L D 1986 S C 360), para. 26(3)(d) of Land Reforms Regulation, 1972, was no longer a valid enactment Constitutional jurisdiction could not be exercised for enforcement of a right which was available under a repugnant provision of law.

C. A. Rehmup Waraich for Petitioner.

Muhammad Sharif petitioner filed a suit against respondent No. 3 for possession of the land in dispute, through exercise of right of pre‑emption, on the ground that the land comprised in his tenancy. The Assistant Commissioner Hafizabad with powers as Collector, by his judgment dated 26‑2‑1983 decreed the suit but on vendee's appeal, the Appellate Authority maintained that the petitioner cultivated the land as a mortgagee and not as a tenant. The judgment and decree of the Collector were, thus, set aside and the suit dismissed. The Appellate Court's judgment is dated 24‑6‑1984. The petitioner then preferred a revision but the learned Member, Board of Revenue, did not differ with the Appellate Court and dismissed the petitioner's revision on 31‑10‑1985. The unsuccess ful pre‑emptor has now come to this Court under Article 199 of the Constitution.

2. It seems that during the pendency of the suit before the Collector, the question of repugnancy of law granting right of pre‑emption to a tenant of the agricultural land, fell for determination before the Shariat Appellate Bench of the Supreme Court, in the case of Government of N.‑W. F. P. v. Malik Said Kamal Shah and others connected appeals. The judgment has peen announced and reported as P L D 1986 S C 360. According to the majority point of view, the law conferring right of pre‑emption, on the tenant, is, repugnant to the injunctions of Islam. In the judgment in terms of clauses (2) and (3) of Article 203‑D. read with clause (2) of Article 203‑F of the Constitution, a direction is given that :‑

"If possible a consolidated law of pre‑emption be enacted accordingly till 31‑7‑1986."

This time limit has expired but the relevant law has not been amended.

3. The learned counsel has been confronted with the decision of the Supreme Court. He has heavily relied upon section 6 of the General Clauses Act which lays down that unless a contrary intention is exhibited, the repeal of a statute does not affect the rights already in existence and the pending legal proceedings can continue. In other words, according to the learned counsel the Supreme Court's judgment has the effect of repealing para. 26(3)(d) of the Land Reforms Regulation, 1972, which confers the first right of pre‑emption on the tenant in the land comprised in his tenancy. He also referred to Article 203‑H which ordains that during the pendency of a petition for decision, as to whether or not a law or provision of law, is, repugnant to injunctions of Islam, any legal proceedings pending in any Court relevant to the point in issue, in such petition, shall continue and be decided in accordance with law for the time being in force.

4. Before proceeding further at the outset it may be stated that the learned counsel's reliance on Article 203‑H is in‑apt. This article merely permits the continuation of the legal proceedings commenced before or after the institution of the petition under Article 203‑D and decision thereof until such law is held to be repugnant to the injunctions of Islam. However, the other point needs examination but the learned counsel seems to be oblivious of Article 264 of the Constitution which is para materia with section 6 bid. It is reproduced below :‑

"Where a law is repealed, or is deemed to

have been repealed, by, under or by virtue of the Constitution, the repeal shall not, except as otherwise provided in the Constitution,‑

(a) revive anything not in force or existing at the time at which the repeal takes effect ;

(b) affect the previous operation of the law or anything duly done or suffered under the law ;

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the law ;

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law ; or

(e) affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment ; and any such investigation, legal proceedings or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the law had not been repealed."

5. Even Article 264 cannot be extended to the instant case. There are two weighty reasons for this. Firstly, the declaration by the Shariat Court or for that matter by the Shariat Appellate Bench of the Supreme Court, that in contemplation of Article 203‑D a particular law is repugnant to injunctions of Islam as laid down in Holy Qur'an and Sunnah, does not repeal the law, for, the repeal is not a judicial function but purely legislative. Secondly, Articles 203‑D and 203‑F are part and parcel of Chapter 3‑A of the Constitution. Article 203‑A is also included therein and provides;

"The provisions of this Chapter shall have effect notwithstanding anything contained in the Constitution."

The effect of Article 203‑A thus, is that the provisions of Chapter 3 override Article 264 and, it therefore, cannot be applied to a case, hit by the point decided by the Shariat Court, under Article 203‑D. Even otherwise the intention of Article 203‑H appears to be to allow the continuation of the pending proceedings, to be dealt with according to the law, then in force, until the law in question is pronounced upon by the Shariat Court, as repugnant to Injunctions of Islam. According to their context, the words "decide in accordance with law for the time being in force", figuring in Article 203‑H cannot be construed to permit enforcement of the law, after the decision of the Shariat Court, declaring the same a repugnant to Islam, had become effective under sub‑clause (b) of clause (3) of Article 203‑D. Needless to mention that Article 203‑G ordains that a decision rendered under Article 203‑D in binding on the High Court and on all the Courts subordinate to the High Courts.

6. There is another important aspect of the issue under discussion. Under the Presidential Order No. 14 of 1985, Article 2‑A has been added to the Constitution and thereunder the Objectives Resolution, made a substantive part thereof. Due to this amendment, the position has radically t changed. The Resolution not only provides a guideline for expounding the Constitution and true understanding thereof, but occupies a pivotal position in the Constitution and has become a substantive source of power. It is now the obligation of the State

to carry forward the establishment of an Islamic Society and exercise its authority to enable the Muslims to order their lives in individual and collective spheres, in accordance with the Injunctions of Islam, as set out in the Holy Qur'an and Sunnah. The enforcement of the laws even after these have been adjudged to be repugnant to the Injunctions of Islam, may have the effect of thwarting the development of a socio judicial system, having its ultimate basis in the' Will of God and thus, defeat the principles enshrined in the Objectives, Resolution.

7. Under Article 203‑D(2), in its decision, the Court has to specify the day on which it shall take affect and under sub‑Article (3) the President' or the Governor, as the case may be, to whom the relevant law relates, has to take steps to bring it in conformity with the Injunctions of Islam. Of course, such steps are to be taken and the law amended before the specified day, failing which, it shall cease to have effect on the date the Court's decision becomes effective. It is to be noticed that in the direction of the Court quoted in the earlier part of this order, the date of 31‑7‑1986 specified for the purposes of Article 203‑D(2) is preceded by the words "if possible". A superficial examination of these words "if possible" perhaps may convey the impression that the date on which the decision shall be effectuated has not been firmly specified and in the matter of amendment of the law, a latitude has been extended to the Government. But in my humble opinion, the expression "if possible" needs to be construed, in the light of the constitutional obligation, requiring the. President, or for that matter the Government concerned to amend the law. According to the Stroud's Judicial Dictionary, Volume 4 (1974 Edn.),1 at page 2067 :‑

"A duty to do a thing if possible' means generally if reasonably possible in a business sense."

The observation of Cotton L. J. in Shepherd and others v. Kottgen and others 2 C P D 582, may also be usefully quoted here :‑

"In the language of everyday, life a thing is impossible when, according to the ordinary course of human events, no expectation can be entertained that it will happen . . . ."

Thus, the event of the Supreme Court's judgment becoming effective, from 31‑7‑1986, could not have been postponed unless the Government, was, shown to be faced with a situation, that it would be unreasonable to expect from it to amend the law, within the time limit fixed by the Court. Conceivably, such a situation did not arise. I am, therefore, of the view that since the Government did not amend the law, the Supreme Court', decision became effective from 31‑7‑1986.

7‑A. The case can also be examined from another angle. The petitioner's suit has already been decided by the forums envisaged by the law under which the right of pre‑emption is claimed by him. The writ petition is not analogous to appeal which is considered as a continuation of the same proceedings and a step in the suit. Through invocation of writ jurisdiction, r the petitioner seeks enforcement of law which by virtue of Article 203‑D(3) (b) ceased to have affect and is no longer a valid enactment. Such a writ cannot be issued.

8. As the petitioner stands denuded of the right of pre‑emption this writ petition is dismissed in limine.

A. A. Petition dismissed.

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